Himachal Pradesh High Court
Arun Thakur vs State Of H.P. And Others on 15 November, 2019
Author: Jyotsna Rewal Dua
Bench: L. Narayana Swamy, Jyotsna Rewal Dua
1
HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.753 of 2019
Reserved on: 11.11.2019
Decided on: 15.11.2019
.
Arun Thakur .........Petitioner
Versus
State of H.P. and others ............Respondents
_______________________________________________________________
Coram:
Hon'ble Mr. Justice L. Narayana Swami, Chief Justice.
Hon'ble Ms. Justice Jyotsna Rewal Dua, J.
Whether approved for reporting?1 :
r to __________________________________________________________ For the petitioner Mr. Ajay Sharma, Sr. Advocate, with Mr. Anandita Sharma, Advocate.
For the respondents : Mr. Ajay Vaidya, Sr. Additional Advocate General, for respondents No.1 to 5/State.
Mr. Surinder Saklani, Advocate, for respondent No.6.
____________________________________________________________ Jyotsna Rewal Dua, J.
The prayer in the instant writ petition is for shutting down/shifting of liquor vend from Gram Panchayat, Beri, to Gram Panchayat, Jangal, District Hamirpur.
We have heard learned counsel for the parties and gone through the record.
2. The grievance of the petitioner against the liquor vend in question is on the grounds that:-
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/11/2019 20:26:04 :::HCHP 2
(i). Liquor vend is at just a distance of 20-30 meters from 'Shanidev Temple'; and
(ii). Gram Sabha has passed resolution and .
requested the concerned authorities for shifting of the liquor vend in question from Gram Panchayat Beri to Gram Panchayat Jangal.
3. Replies to the writ petition have been filed by respondents No.1 to 5/State as well as by private respondent No.6.
3(i). In its reply filed by respondents No.1 to 5/State, the main contentions advanced are thus:-
(a). The liquor vend L-14 Jangal Beri has been allotted in accordance with existing Excise Policy.
(b). Condition No.10.15 of excise announcements for 2018-19 (similar to Condition No.12.15 of Excise Announcements for the year 2019-20) pressed in service in respect of distance of liquor vend from place of worship by ::: Downloaded on - 15/11/2019 20:26:04 :::HCHP 3 public at large, being relevant, is extracted hereinafter:-
"10.15.No person to whom a license in from L- 2, L-2A, L-14, L-14A, L-20B and S-1AA is .
granted shall establish the vend at a distance of not less than 100 (one hundred) metres from any recognised educational institutions and 30 (thirty) metres from place of worship by public at large, inter district Bus Stands, cremation or burial grounds falling in the limits of Municipal Corporation, Municipal Committee and Notified area Committee which are Urban areas having concentration of population. However, the distance of liquor vends from prominent places of worship by public at large i.e. Jakhoo Temple and Sankat Mochan Temple in Shimla distric, Chintpurni Temple in Una district, JwalaJi50 Temple in Kangra district and Shree Naina Devi Ji Temple in Bilaspur district must not be less than 500 metres. In so far as areas other than those mentioned in the foregoing paragraphs are concerned, the distance for establishing liquor vends shall not be less than 100 (one hundred) metres from any recognised educational institution and 60 metres (sixty metres) from any place of worship by public at large, inter district Bus Stand, cremation or burial grounds. No license for retail sale of liquor shall be granted at a site if,.
(a) Such site is situated within 220 metres from the outer edge of any National or State Highway or of a service lane along such highway:
(b) Such site is situated within 500 metres but above 220 metres from the outer edge of any National or State Highway or of a service Lane along such highway except in areas comprised in local bodies ::: Downloaded on - 15/11/2019 20:26:04 :::HCHP 4 within a population of 20,000 people or less.
Provided that the distance mentioned above shall be measured along the road which is walkable/motorable. Provided further that the above restrictions shall .
not apply to sites located within municipal areas".
Under the above extracted excise announcements, distance of at least 30 meters between liquor vend and a place of worship by public at large in an urban area having concentration of population, was to be maintained. In areas other than these, the distance was to be 60 meters. It is contended that liquor vend confirms to distance requirement.
(c). The temple in question is not visited by public at large, therefore, it does not even fall in the category of place of worship by public at large; the temple was built up only recently, i.e. about six months ago, whereas the excise liquor vend was functional much prior to existence of the temple.
3(ii). Respondent No.6, in his reply, raised following contentions:-
::: Downloaded on - 15/11/2019 20:26:04 :::HCHP 5(a). Writ petition is an abuse of process of law, as the petitioner himself is running a washing service station for the vehicles .
just adjacent to the temple in question;
(b). Photograph depicting ramp of a washing service station adjacent to the temple has been appended with the reply to the writ petition. It has been contended that petitioner has his vested interests and in order to harass the replying respondents, instant writ petition has been preferred.
(c). The liquor vend is running in the same area for the last 35 years from the same place.
(d). It has also been submitted by learned counsel for respondent No.6 that said respondent, pursuant to allotment of liquor vend in question, has made huge investments. The period of operation of liquor vend is from 01.04.2019 to 31.03.2020. The liquor vend is already operational for the past eight months now.
::: Downloaded on - 15/11/2019 20:26:04 :::HCHP 64(i). Pursuant to the direction of this Court vide order dated 11.07.2019, learned Civil Judge (Sr. Division)-
cum-Chief Judicial Magistrate, Hamirpur, has submitted the .
spot inspection report to the fact that distance between 'Shanidev Temple' and the liquor retail outlet of respondent No.6 is 28.50 meters.
4(ii). Relying upon Condition No.10.15 of excise announcements, referred to above, learned counsel for the petitioner contends that the distance required between liquor vend and the place of worship has to be 60 meters, whereas, learned Senior Additional Advocate General and learned counsel for respondent No.6, submit that the distance required to be maintained between liquor vend and place of worship by public at large, is 30 meters.
4(iii). In the instant case, as per the spot inspection report of learned Civil Judge (Sr. Division)-cum-Chief Judicial Magistrate, the distance between the temple and liquor retail outlet is 28.50 meters.
Be that as it may, whether the temple is a place of worship by public at large or not, is disputed question of fact. Also, whether the area in question is an urban area with concentrated population, falling within the limits of ::: Downloaded on - 15/11/2019 20:26:04 :::HCHP 7 Municipal Corporation/Municipal Committee/ Municipal Council or Notified Area Committee or not, is also a question to be gone into. In the instant writ petition, the petitioner .
asserts that the temple in question is worshipped by public at large, whereas according to the respondents, the temple does not fall in that category. According to the respondents, this temple was built up just six months ago. It is also the case of the respondents that the liquor vend though stands allotted to respondent No.6 only w.e.f. 01.04.2019, but, it is otherwise being run from the same place for the last many years.
4(iv). Dealing with a bunch of interlocutory applications, seeking extension of time for compliance of directions issued to the State Governments and Union Territories as also modification/recalling of the judgment delivered by Hon'ble Apex Court in AIR 2017 SC 262, titled State of Tamil Nadu, represented by its Secretary, Home, Prohibition and Excise Department versus K. Balu, while disposing of the aforesaid applications, vide order dated 31.03.2017, reported in AIR 2017 SC 1670, Hon'ble Apex Court observed as under:-
"15. .........The state excise rules contain enabling provisions. They provide for a discretion ::: Downloaded on - 15/11/2019 20:26:04 :::HCHP 8 for the grant of liquor licences. No individual has a vested right to obtain a licence. There is no fundamental right to carry on business in liquor since as a matter of constitutional doctrine, Article 19(1)(g) does not extend to trade in liquor which is consistently regarded as res extra .
commercium. Where an excise rule which has been formulated by a state government provides for the maintenance of a specified distance from an institution or amenity, what this postulates is that no licence can be granted at all by the State Government within that distance. The state has a discretion on whether a licence should be granted under its enabling powers. No individual can assert a right to the grant of a licence : trading in liquor is a privilege conferred by the state. The directions which have been issued by this Court do not breach any norm in the nature of a prohibition nor do they operate to lift a prohibition imposed by law. The effect and purport of the directions is that in the interest of public safety and public health, the distance from the outer edge of national or state highways or a service lane along the highway is to be maintained of 500 metres. This does not amount to the assumption of a legislative function by the Court. .........."
5. Considering the admitted fact that after the allotment of liquor vend in favour of respondent No.6, he is running the same w.e.f. 01.04.2019 and said allotment is valid only till 31.03.2020, we allow respondent No.6 to run the said liquor vend only till 31.03.2020. Since the State Government has to allot liquor vend in accordance with its Excise Policy and in accordance with guidelines and instructions issued in this regard from time to time by it, ::: Downloaded on - 15/11/2019 20:26:04 :::HCHP 9 therefore, we direct the State Government to take a conscious decision in respect of the matter of allowing/discontinuing the liquor vend at the place in .
question for the year 2020-21, strictly in accordance with its Excise Policy, after verifying all the averments made in the writ petition. A conscious decision in this regard shall be taken well before next financial year 2020-21.
With the aforesaid observations/directions, the instant writ petition stands disposed of, so also pending miscellaneous application(s), if any.
(L. Narayana Swami) Chief Justice.
(Jyotsna Rewal Dua)
November 15, 2019 Judge
(Yashwant)
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